Summary: Mr & Mrs X complain about the Council’s decision to order him to move his boundary fence. The Ombudsman will not investigate this complaint as we have not seen any evidence of fault in the Council’s actions.

The complaint

1. Mr & Mrs X complain the Council has ordered them to move a boundary fence, saying it encroaches on to the highway. They say no one else in the village must move fences and the Council is treating them unfairly.

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The Ombudsman’s role and powers

2. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)

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How I considered this complaint

3. I considered the information provided by Mr & Mrs X, and discussed the matter with Mr X.

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What I found

4. Mr & Mrs X reported to the Council that their neighbour has installed a brick planter in a position that made entrance and exit to and from their industrial unit difficult and dangerous.
5. The Council visited the site and agreed the planter caused an obstruction to the highway. It arranged for the planter to be removed.
6. Several weeks later the Council wrote to Mr & Mrs X stating it had noted the fence to their property was obstructing the highway. It demanded they move the fence within 28 days of the day of the letter.
7. Mr & Mrs X complained to the Council stating the fence had been in the same position for 18 years. They wanted to know why the Council had just decided to make them move it. They also questioned whether any other residents must move similar obstructions.
8. The Council told Mr & Mrs X that while dealing with the planter they had consulted their highway maps. Officers had then realised Mr & Mrs X’s fence was on highway land.
9. Following further correspondence with Mr & Mrs X the Council explained that when it becomes aware that parts of the highway have been enclosed, it will always look to take action.

Assessment

10. Mr & Mrs X are unhappy with the Council’s decision to demand they move their fence. They say it is a small amount and Mr X says the Council’s action is “pathetic”. I understand they feel it is unfair they must move their fence a small distance. They are also concerned they are being singled out as they say there are similar places where highway land has been enclosed throughout the village.
11. The Council has confirmed it became aware their fence had enclosed part of the highway when it was investigating their report about the planter.
12. The Ombudsman cannot question the merits of a decision properly made. In this case the Council considers Mr & Mrs X’s fence has enclosed part of the highway. It is entitled to require a fence to be moved if it is erected in a way which encloses part of the highway into personal or business property.
13. The Ombudsman cannot determine a boundary. If Mr & Mrs X disagree with the Council’s assessment of the highway boundary, they can ask the Court to decide.

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Final decision

14. I will not investigate this complaint. This is because I have not seen any evidence of fault in the way the Council has decided to require them to move their fence.

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Investigator's decision on behalf of the Ombudsman